Monday, September 15, 2008

A Revelation of Insignificance

In the September 9, 2008 issue of The News & Observer, staff writer Anne Blythe, in an article titled "Detective may have lost videotape of witness," somehow managed to invoke the name of Mike Nifong. She wrote, "Defense lawyers representing the players charged in the Duke lacrosse team cast negative light on Durham and former District Attorney Mike Nifong for withholding DNA evidence that could have helped the defense." The operative words in the preceding sentence are "could have." I have been trying for some time now to get a logical explanation as to how the presence of multiple unidentified male DNA on the accuser's rape kit exam could have been exculpatory or of assistance to the defense. Even defense lawyers have not offered an explanation as to the finding's potential significance.The article goes on, "That revelation led to the demise of Nifong's law career. He was stripped of his law license and ousted from office." The "revelation" was truly one of insignificance, and when placed in proper context, it makes the actions taken by the state of North Carolina against Mr. Nifong all the more abhorrent. Take for example the following three cases in which prosecutors withheld evidence from defense attorneys in order to win death penalty convictions against innocent men:

Prosecutors Ken Honeycutt and Scott Brewer withheld from the defense team of Jonathan Gregory Hoffman knowledge that it had made deals with the two main witnesses (one received immunity on other criminal charges, and the other received reward money as a condition for testifying). Hoffman served more than seven years on death row.

Prosecutors David Hoke and Debra Graves withheld the following evidence from Alan Gell's defense team: (a) that they had made a deal with two key witnesses to receive reduced sentences in exchange for their testimony, and (b) nine witness statements from individuals who saw the murder victim alive during the period when Mr. Gell was incarcerated on an unrelated charge and could not have possibly have committed the murder for which he was charged. Likewise, Mr. Gell was sentenced to death and served ten years in prison for a crime prosecutors knew that he could not possibly have committed.

Prosecutor Randy Lyons withheld information from the defense attorneys of Charles Wayne Munsey in winning a death penalty conviction. A memo by Assistant Attorney General Dale Talbert notified Prosecutor Lyons that records, from the prison where a "jailhouse snitch" alleged that Munsey confessed to him that he committed a murder for which he was charged, showed that the snitch was not incarcerated there, and could not have been in contact with Mr. Munsey to hear a confession. Talbert suggested that Lyons lie to the court and state that lack of such record did not preclude the snitch from being incarcerated at the prison. Mr. Lyons heeded Mr. Talbert's advice, and, in addition, did not even mention the information in the memo, which had exculpatory value. Munsey spent the remainder of his life in prison, where he died from lung cancer.

In the face of the monumental adverse revelations against them, of the aforementioned prosecutors, none was disbarred, fired, or severely disciplined. Scott Brewer went on to become a judge, and David Hoke was promoted to Assistant Director of the North Carolina Administrative Office of the Courts.

The atrocious fact is that Mike Nifong is the only prosecutor to be disbarred by the NC State Bar since its inception.. and for such a relatively insignificant revelation. And, that is apparently okay with The News & Observer, as it continues, with other media outlets, to spread the propaganda that Mike Nifong is the worst prosecutor in North Carolina history. Meanwhile, it gives the truly horrendous prosecutors a pass.

12 comments:

How could the presence of male DNA have helped the Duke lacrosse players. Again I will try to explain to you. Whether or not it will help is questionable. Like "decent, honorable" Mike Nifong, you try to ignore and trivialize exculpatory evidence and then deem it insignificant.

If a woman indeed has been raped and male DNA was found on her person immediately after the alleged rape, as was the case with CGM, the logical conclusion would be the DNA came from the rapist. A male who was not the rapist would have DNA which would not match the DNA found on the victim. The DNA found on CGM's person immediately after the attack (that was when the rape kit, the tested materials, was taken) came from males who were not Lacrosse players. Ergo, the Lacrosse players were not the rapists. Can we say reasonable doubt, boys and girls. It was exculpatory evidence and Nifong was bound by law to turn it over to the defense. And "decent, honorable" Mike Nifong deliberately did not do so.

The rape kit, itself, when tested by the state crime lab, contained no biological material which would indicate a rape. Nifong's explanation was that the Lacrosse players, who had watched CSI, were familiar with the importance of DNA and had wiped her down, removing the DNA evidence. The presence of DNA from males other than the Lacrosse players created a dilemma for Nifong. How could the Lacrosse players have selectively removed their own DNA and left DNA from other males. The answer is, they couldn't - that is impossible. Nifong's explanation of why no Lacrosse DNA was found on CGM lacked credibility. DNA from other males but from no Lacrosse player, from that viewpoint, raised reasonable doubt as to their guilt and Nifong violated the law in not turning over the evidence to the Defence.

Finally, the word "could" is irrelevant. Under North Carolina Law, a prosecutor is obligated to share any evidence he has with the defense.

Insignificant revelation my eye! Insignificant or not, Nifong was obligated by law to turn over the information to the defense.

Nifong knew the information would create reasonable doubt as to the guilt of the Lacrosse players whom, I say again, he already knew were innocent. He willfully withheld the information, then lied to the court and lied to the defense attorneys about it. Such actions are not the actions of a "decent honorable' man.

Is a prosecutor obligated to reveal to a defense attorney that he has cut a deal with a witness? Is that the law in North Carolina. Could you clarify that. Is it not the duty of the defense attorney to raise doubt about the credibility of prosecution witnesses? Should not a defense attorney ask a defense witness about any deal tha witness made with the prosecution. If the defense attorney fails to do so, how does that add up to prosecutorial misconduct?

This "decent honorable' man did not give a rat's patootie about the race or class of CGM. The only thing Nifong cared about was his own personal welfare, getting vested in the DA retirement system, increasing his pension. He did not even interview CGM until months into the case.

Other instances of prosecutorial misconduct are irrelevant to this case. Again, I offer the example of OJ. If OJ beat a murder one rap simply because he had the means to hire his dream legal team, does that mean any one who commits murder one should not be tried and found guilty simply because he does not have OJ's resources?

Stick to the issue. Did Mike Nifong commit ethics and legal violations which justified disbarment and loss of his legal license. The evidence in the public record screams "YES". Any act of any other prosecutor in North Carolina does not change that.

In 1963, in Brady v. Maryland, the US Supreme Court decided that a prosecutor is obliged to turn over to defense counsel any and all material which would exonerate the defendant or impeach the credibility of the prosecution's case. Such material is called Brady Material. Withholding of such material is a violation of the defendant's right to due process under the 14th Amendment.

To answer a question I asked Justice4Nifong, deals with witnesses are considered Brady material. A prosecutor who offers a potential witness immunity in exchange for testimony is required by law to disclose that fact to the defense.

In reviewing some of the cases cited by Justice4Nifong, there were a slew of Brady material violations on the part of prosecutors. Just about all of them preceded the Duke Rape Frame up. In one of them, the Alan Gell case, the defense attorneys included James P. Cooney, III, Joseph Cheshire V, and Brad Bannon, all of whom represented falsely accused Duke Lacrosse players. Brad Bannon co authored an article, "Advocating for Those Left Behind: The Need for Discovery Reform in Non-capital Post-conviction Cases", published in a journal called "Trial Briefs" in February of 2005. Prior to the Duke Rape Frame up, there was a lot of agitation in North Carolina over prosecutorial Brady material violations. It did not suddenly become an issue when Nifong tried to prosecute lacrosse players. All the cases Justice4Nifong cites may have been factors in why a prosecutor, Nifong, finally got disbarred over a Brady material violation.

Justice4Nifong may call the DNA revelation "A Revelation of Insignificance". I think any unbiased observer can understand how the DNA evidence was significant. The presence of male DNA on CGM's person from males other than the Lacrosse team raised reasonable doubt as to whether the Lacrosse players had committed a rape. It undermined the credibility of Nifong's accusation that the Lacrosse players had attempted to remove DNA evidence from CGM's person. It was Brady material, it did have probative value to the defense, it exonerated the defendants. Nifong not only concealed that evidence from the defense. He lied to the defense and to the court about its existence.

Nifong was aware of DNA testing results when he had the tainted lineup procedure done at which CGM identified lacrosse players as her attackers with "80-100% certainty". He knew, then, that the medical exam showed no evidence of a rape. In the other cases cited by Justice4Nifong, actual crimes had been committed. In the Duke Rape frame up, no crime had been committed. NIfong was aware of that. He tried to convict three innocent men anyway. Maybe that was the reason his violations were considered so egregious.

If anyone wants to appeal Nifong's disbarment, do it on the basis of what happened at the ethics trial, not on what other prosecutors did in other cases. I say, the evidence now in the public record screams that Nifong violated the law, violated legal ethics and violated the Constitution of the United States and for that his disbarment was deserved. No other issues are relevant

Let's go over the DNA significance again. Repetition seems to be the only way Justice4Nifong will ever get it.

I have learned about the Innocence project. Some of the men who have been exonerated were convicted of rape. What exonerated them was that their DNA did not match DNA found on the victim.

Justice4Nifong did not mention Darryl Hunt who was wrongfully convicted of the rape and murder of Deborah Sykes. What exonerated Darryl Sykes was that DNA found on the victim matched another man, not him. That other man ultimately confessed to the murder.

The situation in the Duke frame up was that Duke Lacrosse players were accused of raping Crystal Mangum. DNA testing showed no DNA of any Duke Lacrosse player on Crystal Mangum's person but did show DNA from a number of other males.

Justice4Nifong says that information had no probative value for the Defense, had no exculpatory value for the defendants, and Nifong did no harm in not turning it over.

More for Justice4Nifong. His case that Nifong is a "decent honorable" man is that he prosecuted rich white males who were accused of raping a poor black woman. We won't deal with CGM's lack of credibility as an accusing witness, or Nifong's deliberate attempt to conceal evidence that exonerated the defendants on this trip. Lets consider what else this "decent honorable" man tried to do. Again, the reason for the repetition is that Justice4Nifong doesn't get it.

Before there was any evidence one way or the other, Nifong went public (50 or more interviews) saying that a crime had been committed and that members of the Duke Lacrosse team were the perpetrators. So much for the presumption of innocence. Nifong's statements created a climate of hostility to the Duke lacrosse team in the community from which any Jury would come. So much for the right to trial by a fair, unbiased jury. When Duke lacrosse team members retained counsel, Nifong made statements to the effect that this was a sign of guilt. When, at the advice of counsel, Lacrosse players would not talk to authorities, Nifong made a statement to the effect that this was an indication of guilt. So much respect for a suspect's right to counsel and right to remain silent!

Nifong threatened to charge Lacrosse team members with aiding and abetting if they did not come forth and provide incriminating testimony. They could not provide incriminating testimony without perjuring themselves because no crime had happened. In my opinion, Nifong was using the authority of his office to suborn perjury.

Moezeldin Elmostafa was able to provide testimony that exonerated Lacrosse player Reade Seligman. Nifoing tried to intimidate him into changing his testimony. Kim Roberts, who "performed" with CGM at the Lacrosse team party, initially stated that CGM's rape claims were "a crock". Nifong pressured her to change her testimony. Witness intimidation, the last time I checked, was a crime, as was subornation of perjury.

Justice4Nifong, what is your take on all this? Are these the acts of a "decent honorable" man.

Nifong was an indecent, dishonorable excuse of a man who wrongfully accused three innocent men and then gave them no chance at a defense. He did not care about decency or honor or justice, or, for that matter, the race or class of the accuser. He just wanted to put some rich white boys in prison based on their race and class.

More needs to be said about what Justice4Nifong calls "A Revelation of Insignificance".

The code of ethics for prosecutors states unequivocally that a prosecutor should not proceed when he has no probable cause to believe a crime had been committed.

Before Nifong had CGM identify the Lacrosse players with "80-100% certainty" he had the DNA evidence. The first round of DNA testing, done by the state crime lab revealed that CGM had on her person no semen, no blood, no material of any kind that would have been left if a rape had happened to her the way she had described. The second round of testing by Brian Meehan's DNA Security revealed that the only male DNA on her person came from males other than the Lacrosse players.

If CGM had been raped, the perpetrators would have to have been males other than the Duke Lacrosse team. However, the sum total of the DNA tests indicated CGM had not been raped. Nifong had no probable cause to justify prosecution of the Lacrosse players.

Justice4Nifong calling the DNA "A Revelation of Insignificance" is in and of itself a matter of insignificance. Nifong's possession of the DNA evidence required him not to proceed against the Lacrosse players. He continued to prosecute members of the Lacrosse team. He committed a serious violation of legal ethics whether or not he revealed to them the DNA evidence.

Of course, once he decided to proceed, he was required not only by the code of legal ethics but also by the Brady vs. Maryland decision of the US Supreme Court to disclose all the results of the DNA testing. That he did not was not only a violation of legal ethics but a violation of the highest law of the land.

About the only thing that would have justified Nifong not revealing the results of the DNA testing to the three Lacrosse players would have been Nifong's publicly dropping the charges against them, declaring the Lacrosse players innocent, and admitting he should have never brought indictments against them.

In all the other cases Justice4Nifong cited, the prosecutors had probable cause to proceed against someone. There had been crimes committed. Nifong had probable cause to proceed against no one. There was no crime committed, and Nifong knew it. That, in my opinion, does make his misconduct a bit worse than the others.

The Lacrosse players whom Nifong tried to send to prison on the basis of CGM's 80-100% certain ID have filed a civil suit against him, and others, nothing new at this point in time. Their lawyers allege that Nifong has admitted his filing for bankruptcy was an attempt to avoid having to answer that lawsuit. Any info on that, Justice4Nifong?

If that allegation is true, I say it is a tacit admission of guilt by Nifong to his misconduct and he does not want to answer to it or have it discussed in open court. Further, it is a tacit admission on his part that his disbarment was justified.

I will be calling for a Federal Investigation into ALL of Durham's governmental agencies, and want nothing but COMPLETE disclosure, and all of the rats run out of town on a rail with a ticket straight to Federal Prison for their crimes in office that are most definitely Human Rights violations! No, Fong was not the lone rogue, but he is knee deep in the same "bull" the rest of Durham's posse is, and is true that none of them are above the law, and use it only for their own personal and political agendas.Rhonda FlemingCleveland, OhioJustice4JackSister of Allen J Croft JrMurdered In Durham May 11, 2005